Did One Man Die For Another Man's Crime?

The Secret That Wasn't

Violent felon bragged that he was real killer

Julie Arsuaga could not be reached for comment. In a recent interview, her former husband said he still believes De Luna was the man he saw down the street.

But he acknowledged he never saw De Luna at the gas station: "I didn't see the man commit a crime."

NOT A ROBBERY?

The discovery of $149 in De Luna's pocket when he was arrested was important to the prosecution's case because it was one more way to tie him to the crime.

But a review of the station's business records show that's a shaky assumption.

De Luna's defense lawyers established that he had cashed a paycheck for $135 the day of the murder and $71 a week earlier. Further, they noted that the $149 was in a neat roll--unlikely if the money had just been snatched from a cash register--and that none of the bills tested positive for blood. Money found scattered in the Sigmor station was bloodstained.

At trial, a district manager for the chain of stations told the jury that an inventory performed the night of the crime showed a shortage of $166. He couldn't say how much of that was merchandise and how much, if any, was cash.

But another Sigmor employee at the time, Robert Stange, never believed any money was taken.

Stange, who said he was never interviewed by police, prosecutors or defense lawyers, worked the day shift at the station before Lopez. In a recent interview, he said he was called back that night after the murder to clean up the blood and conduct the inventory.

He said he found $55 in cash receipts as well as $200 kept at the station to make change for customers.

Lopez, he said, always made sure that when she accumulated $100 in receipts, she immediately put it in the safe and noted the time and the amount of the cash drop in the station's daily log.

A copy of the log shows that Lopez last made a drop of $100 at 7:31 p.m., 38 minutes before she was attacked.

For De Luna's $149 to have been robbery proceeds, Stange explained, Lopez would have had to take in at least that much in the half-hour before the crime occurred, without putting any of it in the safe. Lopez, he said, "would have never kept that kind of money in the drawer without making a drop. She didn't want that kind of money on hand. Nobody did."

At the request of the Tribune, Kevin Stevens, a DePaul University accounting professor, examined the inventory report prosecutors used at trial. Stevens, who coincidentally worked at a gas station while in college, concluded that the Sigmor's bookkeeping system was too haphazard to be accurate.

"They can't know how much cash was missing," Stevens said, "because they can't know how much cash was there."

STILL CONFIDENT

After the Tribune began its investigation, the lead prosecutor in De Luna's trial, Steve Schiwetz, decided to examine the case file.

Troubled by some of the questions being raised, he spent hours at the Nueces County district attorney's office with a reporter poring over the trial exhibits, police reports and other documents in the case, as well as studying documents the Tribune provided.

Now a lawyer in private practice, Schiwetz acknowledged that the case relied heavily on eyewitness testimony. "Sometimes it's reliable. Sometimes it isn't reliable," he said in an interview. "And sometimes, in cases like this, you're not entirely sure how reliable it is."

Schiwetz labeled Hernandez a "phantom" at trial, but said he would not have done so if he'd been informed by a fellow prosecutor that Hernandez had been a suspect in the murder of another woman. Schiwetz also said that if he had been told of reports that Carlos Hernandez was claiming to be Lopez's killer, he would have investigated them.

"Anytime somebody's going around saying they killed somebody, I think it's worth looking at," he said. "But I've heard a lot of people make claims for stuff they did or didn't do that weren't true."

Ultimately, Schiwetz points to several elements of the case that still persuade him the jury convicted the right man. De Luna, he said, lied when he claimed to have talked to two women at a skating rink on the night of the crime and lied when he apparently said he first met Hernandez in jail. De Luna had lost all credibility, Schiwetz said.

"He's lying about the most important story he's ever going to tell in his entire life," he said.

In addition, while De Luna said he lost his shirt while scaling a fence, he gave no explanation for how he lost his shoes, Schiwetz noted. Though the crime lab found no blood or other evidence on them, Schiwetz told the jury that De Luna could have stabbed Lopez without getting blood on his shirt and that any blood on his shoes washed off when he ran through wet grass.

As for Hernandez's history of knife crimes, he said, "Every man in this town has carried a knife. And most of us still do. I carry a knife. I did not kill Wanda Lopez or anybody else."

Schiwetz's co-prosecutor on the De Luna case, Ken Botary, also remains confident the verdict was correct.